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P7: Late further appeal
Reason for time limits
“We do accept that time bar provisions are created for a reason and that is that they provide finality and certainty and that is not a matter that should be lightly disregarded.” (North Berwrick Golf Club v. HMRC [2015] UKFTT 82 (TC), §34).
Whether the appeal is late
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Notice of appeal must contain grounds of appeal relied on
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“The letter of 6 July and enclosures did not constitute a notice of appeal because they did not include the grounds of appeal relied on by Mr Huitson which were contained in his application to the FTT and in respect of which the FTT had granted permission (see rules 23(3) and 21(4)(e) of the UT Rules).” (Huitson v. HMRC [2017] UKUT 75 (TCC), §13, Judge Sinfield).
Examples of reasonable excuses
Unaware of decision and no reason to pursue HMRC
“Since we accept that the Decision was not received by the [taxpayer] and that there was no particular reason why they should have been in contact with HMRC about this matter before 2014 we find that there is both a good explanation for the default and that that amounts to a reasonable excuse.” (North Berwick Golf Club v. HMRC [2015] UKFTT 82 (TC), §43).
Examples of unreasonable excuses
Legal research
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“But in my judgment, none of the time taken for legal research amounts to a valid excuse for delay, let alone for a delay of such severity.” (Davies v. Davies [2015] EWCA Civ 1008, §31).
Other considerations
Whether the taxpayer acted with reasonable diligence once the excuse ceased to operate
“Although the delay in this case is very long at four years and ten months it is nevertheless wholly unsurprising since the Appellant only became aware that the Decision had been issued in 2014 and they acted very promptly immediately.” (North Berwick Golf Club v. HMRC [2015] UKFTT 82 (TC), §45).
Prejudice if the extension is granted
“There is prejudice to the Government in having to meet large, unexpected claims. The government needs to plan its income and expenditure. Large unforeseen claims are disruptive of a government’s budget.” (Graham v. HMRC [2014] UKUT 75, §21).
“…even if the appeal had been lodged timeously absolutely nothing would have happened in the interim until the time the accountants wrote to HMRC in 2014 and indeed until now…the prejudice to HMRC is not nearly as serious as it might be in other circumstances.” (North Berwick Golf Club v. HMRC [2015] UKFTT 82 (TC), §50).
Prejudice if the extension is not granted
“The merits of the Appellant’s case can only take it some way but it is relevant that there is a possibility of success. We find that if we were to “shut out” the Appellant from effective litigation there would be an undoubted substantial prejudice to the Appellant and we take that finding into account in conducting our balancing exercise.” (North Berwick Golf Club v. HMRC [2015] UKFTT 82 (TC), §48).
Public interest in finality
“There is undoubtedly the issue of the policy of finality in litigation and other legal proceedings.” (North Berwick Golf Club v. HMRC [2015] UKFTT 82 (TC), §52).
Implications for other cases
“We do not consider that if we grant leave to appeal in this instance that it has any implication for any other cases…the facts here are unique.” (North Berwick Golf Club v. HMRC [2015] UKFTT 82 (TC), §53).
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Unsophisticated litigant in person
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“All that said, however, it is clear to me that the Appellant and her grandson are not sophisticated litigants in person. The Appellant herself is 90 years old. She is in fair health, according to her grandson, but reacts adversely to stress. I doubt that she has really appreciated the gravity of what is happening and I doubt that she has focussed on the very serious orders that have been made against her since the outcome of the trial before the judge. It seems to me that she may have focussed instead on the unfortunate fall-out within her family…In all these circumstances, it seems to me just and proportionate in the very exceptional circumstances of this case to grant an extension of time at least to appeal paragraph 6 of the judge's order.” (Davies v. Davies [2015] EWCA Civ 1008, §§31…32).
Reopening finalised appeals
Lawyer’s mistake is not sufficient
“One cannot get away from the fact that this application is based on lawyers' mistakes and that the Taylor v Lawrence jurisdiction (only invented by this court in 2002 to cater for glaring injustice) is not intended to cater for such mistakes, however reasonable and understandable they may be. Law is a complicated business and mistakes will inevitably be made. Usually they will not matter because mistakes by lawyers can often be corrected or minimised by judges and mistakes by judges will be corrected by this court and this court can be corrected by the Supreme Court but once a decision becomes final, at whatever level, it must be accepted as final in the absence of exceptional circumstances. Mistakes are, regrettably, not exceptional at all.” (R (oao Nicholas) v. Upper Tribunal [2013] EWCA Civ 799, §20).